Elizabeth Pollman on the Supreme Court and the complexity of business interests (at Harvard Law Review)

Hlr pollmanBy Mark D. White

In her article "The Supreme Court and the Pro-Business Paradox" in the Harvard Law Review, Elizabeth Pollman (Penn Law) reconsiders the Roberts Court's reputation as pro-business in light of the heterogeneity of interests across firms, as well as the conflicting interests of different parties within firms, both often neglected in both economic and legal commentary and analysis. (For earlier work on this general topic, see Jonathan H. Adler's edited volume Business and the Roberts Court.)

From her introduction:

This Comment makes two primary contributions. It first observes that cases from the recent Term reflect an important way in which the Roberts Court has earned its reputation: over the beginning of the twenty-first century, the Court has often expanded corporate rights while narrowing corporate liability or access to justice against corporate defendants. Part I of this Comment sets forth this argument, using Americans for Prosperity, Ford, and Nestlé as case studies to show how the Court uses ill-fitting conceptions or overbroad generalizations to empower corporations and limit their accountability.

This trend gives rise to a paradox that Part II subsequently explores: the “pro-business” Court is often at odds with internal activity in corporate law and governance. Quite remarkably, as the Roberts Court has expanded corporate rights and narrowed pathways to liability, many shareholders and stakeholders have become vocal participants, putting pressure on corporations to rein in the use of their rights, to mitigate risks generated by their externalities, and to take account of environmental, social, and governance (ESG) concerns. The Court’s expansion of corporate rights not only disserves many corporate participants and spurs them to action but also might fuel challenges to new disclosure rules about corporate political activity or other ESG-related concerns that investors and others seek for effective participation in corporate governance. Further, as the Court has downplayed or ignored corporate decisionmaking structures in its jurisprudence expanding rights and narrowing liability, by contrast, in the world of corporate law and governance, we see that board oversight, monitoring, and compliance functions have grown in importance. State corporate law cases have heightened attention on the board’s role in providing oversight to ensure legal compliance throughout the corporation’s operations and to mitigate litigation and reputational risks that can arise from corporate abuses around the world. Corporate compliance programs and voluntary ESG initiatives have proliferated amid widespread debate about the purpose of the corporation and a broadened role for stakeholders.

Looking at these diverging developments together suggests that, at least in some important circumstances, the Supreme Court’s approach may not capture the reality of modern business corporations, and it might not be what many shareholders and corporate participants actually want. It may instead create new tensions in corporations that are not fully and easily resolved through private ordering and that undermine the conceptual foundation for the existing arrangements in corporate law and governance. It may also ultimately serve only a limited set of business interests — not the great number of workers who are often framed as stakeholders on the other side of “pro-business” jurisprudence, nor the majority of public corporation shareholders, who are increasingly diversified through institutions that rely on external regulation to constrain corporations and minimize systematic risk. And so, in sum, corporations might bear little resemblance to the Court’s characterizations, and the business world, on the whole, might often be better off without “pro-business” jurisprudence that empowers corporations and erodes their external constraints.

Elizabeth Brake on price gouging (in Economics and Philosophy)

Economics and philosophyBy Mark D. White

In the latest issue of Economics and Philosophy (37/3, November 2021), Elizabeth Brake (Rice University) examines one of the most controversial topics in the ethical analysis of market behavior. In her article "Price Gouging and the Duty of Easy Rescue," Brake surveys the standard economic and ethical arguments for and against the practice, and suggests a novel ethical argument against it: that it violates our obligation to help people in emergency situations when it is of little cost to us. This position is usually associated with utilitarianism, thanks to Peter Singer, but can also be derived from various forms of deontology (although the positive nature of the duty may demand an extra step) as well as virtue ethics.

Brake makes a legal case as well as an ethical one, arguing that there is a basis in law for enforcement of a duty of easy rescue in such cases where price gouging arises. As she acknowledges, this is a more difficult case to make, because a legal duty normally implies a right that is violated, and a legal right to assistance is not generally recognized, however dire one's circumstances. She suggests several alternative ways of justifying a limited prohibition of price gouging based on legal duty of easy rescue, such as considering it as part of the regulation of market activity in the public interest, in which businesses are prohibited from harmful practices.

There is much more in Brake's paper than I can discuss here and it rewards a careful reading. For instance, she does address the economic benefits of price gouging, such as increasing supply of much-needed goods to disaster-stricken areas, and her ethical and legal analysis does allow for price increases to cover legitimate costs and risk. Her argument is against "pure" profiteering only, claiming that the seller's interest in higher profit does not justify holding disaster victim's interest in survival hostage to negotiations over price. Related to this, Brake also notes that market conditions are far from ideal in disasters, so we should not assume the same quality of consent, or use the same standards of coercion or duress, when evaluating transactions offered or made in such a context.

(For more of Brake's work on disaster ethics, see the dedicated page at her website.)

New open-access book: Jeremy Bentham on Police (UCL Press)

Bentham on policingBy Mark D. White

UCL Press has released a new book, Jeremy Bentham on Police, edited by Scott Jacques and Philip Schofield, which is available as a free download. Its chapters are written mostly from the viewpoint of criminology, but they would seem very relevant to the law-and-economics approach to policing as well, given Bentham's foundational influence over the field.

From the description at the publisher's website:

Jeremy Bentham’s ideas on punishment are famous. Every criminology student learns about Bentham, and every criminologist contends with him, as advocate or opponent. This discourse concerns his ideas about punishment, namely with respect to legislation and the panopticon. Yet, scholars and students are generally ignorant of Bentham’s ideas on police. Hitherto, these ideas have been largely unknowable. Now, thanks to UCL’s Bentham Project, these ideas are public.

Jeremy Bentham on Police celebrates this achievement by exploring the story of Bentham’s writings on police and considering their relevance to the past, present and future of criminology. After Scott Jacques introduces the book, the Director of the Bentham Project, Philip Schofield, describes and explains how it works. Then Michael Quinn, who brought together Bentham’s writings on police, delves into the personal and socio-historical background in which they were created. An extract follows, representing the most (criminologically-)relevant passages from Bentham’s police writings. Finally, a rich variety of scholars offer their thoughts on what those writings mean for criminology. These contributions come from Anthony A. Braga, Ronald Clarke, David J. Cox, Stephen Douglas, Stephen Engelmann, G. Geltner, Joel F. Harrington, Jonathan Jacobs, Paul Knepper, Gloria Laycock, Gary T. Marx, Daniel S. Nagin, Graeme R. Newman, Pat O’Malley, Eric L. Piza, Kim Rossmo, Lucia Summers and Dean Wilson.

Symposium on proportionality in Criminal Law and Philosophy

Crim law and philBy Mark D. White

The October 2021 issue of Criminal Law and Philosophy (15/3) focuses on proportionality, a  principle of just punishment that is often neglected by economic models of criminal punishment that focus instead of cost-effective methods of deterrence, especially in light of costly enforcement measures. As special issue editors Douglas Husak and John Hasnas write in their introduction:

The following papers reveal the diversity of scholarly opinion about the principle of proportionality. Several are skeptical that the principle can be defended at all; others are reluctant to abandon the principle but point out many well-known and not-so-well-known difficulties in punishing according to proportionality; and a few make significant efforts to try to resolve some of these problems. We hope and believe that this set of papers represents major progress in understanding the role, if any, that judgments of proportionality should play in a just system of penal sentencing.

This is a fascinating set of papers by an astounding group of scholars, and will surely reward close reading—proportionate to effort, of course!

Douglas Husak, "Proportionality in Personal Life"

Larry Alexander, "Proportionality’s Function"

Mitchell N. Berman, "Proportionality, Constraint, and Culpability"

James Manwaring, "Proportionality’s Lower Bound" (OPEN ACCESS)

Adam J. Kolber, "The End of Liberty"

Youngjae Lee, "Mala Prohibita and Proportionality"

Jesper Ryberg, "Retributivism and the (Lack of) Justification of Proportionality"

Göran Duus-Otterström, "Do Offenders Deserve Proportionate Punishments?" (OPEN ACCESS)

Kimberly Kessler Ferzan, "Punishment, Proportionality, and Aggregation"

Heidi M. Hurd and Michael S. Moore, "The Ethical Implications of Proportioning Punishment to Deontological Desert"

Symposium: Cost-Benefit Analysis at the Crossroads (LPE Project)

Lpe projectBy Mark D. White

The Law and Political Economy (LPE) Project recently launched a symposium that promises to examine cost-benefit analysis (CBA) under the critical lens of political science, law, and philosophy. The introductory post by legal scholar Frank Pasquale can be found here, and after surveying a number of the issues with CBA, summarizes the symposium's intent and future participants in its final paragraph:

The challenge to CBA is now clear. If it is to be a tool of policy evaluation worth supporting, we must embed it in political frameworks that make CBA just as prone to catalyzing regulation, as to derailing it. Moreover, the limits of quantification must be squarely addressed. Posts in this symposium demonstrate a way forward on both fronts, enriching CBA with both immanent and transcendent critiques of past OIRA missteps. We will be thrilled to welcome the symposiasts over the coming weeks: Beth Popp Berman, James Goodwin, Lisa Heinzerling, Zachary Liscow, Melissa Luttrell, Jorge Romano-Romero, Mark Silverman, Amy Sinden, and Karen Tani. Each has done important work in the field, and LPE Blog is honored to host their contributions.

The first full post, by legal scholar Lisa Heinzerling, discusses CBA in the context of the dual concerns of racial justice and climate change. She asks whether CBA can adequately appreciate the true benefits of action on these fronts, given its reliance on discounting of future benefits (which is highly sensitive to the specific discount rate chosen) and monetary valuation of benefits (which does not apply well to issues involving dignity and rights). She concludes by suggesting an alternative evaluative approach to these policy issues:

Discounting and monetary valuation are so central to the cost-benefit method that it is hard to imagine cost-benefit analysis without them. Happily, though, it is easy to imagine White House regulatory review without cost-benefit analysis. The vast majority of federal regulatory statutes do not require cost-benefit analysis. Many do not even allow it. Instead of evaluating major rules by asking whether they satisfy the test of formal cost-benefit analysis, the White House could ask whether the rules faithfully follow the relevant statutory framework and whether the agencies have rigorously analyzed the evidence in front of them. This simple reform would not only avoid the conundrums posed by cost-benefit analysis. It would also close the gap that has opened between the regulatory standards set by Congress and the cost-benefit metric that recent presidents have preferred.

This symposium is shaping up to be a valuable and fascinating survey of the numerous moral, legal, and political issues with cost-benefit analysis, and we'll likely be highlighting more contributions here as it continues.

Judicial Bias and the Death Penalty

Jonathan B. Wight

Obama justicePresident Obama has an eloquence and slow burning passion that is apparent in this video staged at a prison to talk about institutional injustice.

It provides the clearest statement I’ve heard of how small injustices at the margin—at each level of the justice system—compound to create systematic institutional bias.

This is moving for me to hear, when my state of Virginia executed someone this week for heinous crimes. The anger and vitriol directed against this evil perpetrator is surely justifiable. But the penalty of death is an irreversible punishment, and shown to be meted out disproportionately to some groups compared to others.

Since 1973, there have been 153 cases of death row inmates being exonerated by new information. Even if you believe that the justice system were squeaky clean in terms of doling out similar punishments to all people, the death penalty allows for no errors of fact or theory. And humans are not immune to both blunders.

Absolute punishments seem better fit for Medieval Ages when God’s certainty seemed closer at hand.

Justice is done—and done the right way—in SCOTUS' decision on marriage equality

Mark D. White

Ssm flagsToday the Supreme Court of the United States—now, thanks to Justice Scalia's dissent in yesterday's King v Burwell dissent, "officially" known as SCOTUS—declared marriage to be a right for all, covering both same-sex and opposite-sex couples. In his majority opinion, Justice Kennedy affirms same-sex marriage to be a matter of rights and dignity; Chief Justice Roberts, in his dissent, regards it as a matter of policy best left to the voters.

I agree with Kennedy, as I explain at Psychology Today. For more details on the opinions themselves (found here), I recommend Orin Kerr's summary at The Volokh Conspiracy.

New book: Law and Social Economics

LawSEMark D. White

Over at the Association for Social Economics Blog, I talk about my latest edited book, Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, drawn from papers presented at the Allied Social Science Associations (ASSA) and Law and Society Association (LSA) meetings. Below is the table of contents:

Part I: Foundations

Chapter 1: "Towards a Contractarian Theory of Law," Claire Finkelstein

Chapter 2: "Environmental Ethics, Economics, and Property Law," Steven McMullen and Daniel Molling

Chapter 3: "Individual Rights, Economic Transactions and Recognition: A Legal Approach to Social Economics," Stefano Solari

Chapter 4: "Institutionalist Method and Forensic Proof," Robert M. LaJeunesse

Chapter 5: "Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice," Mark D. White

Part II: Applications

Chapter 6: "Female Genital Mutilation and the Law: A Qualitative Case Study," Regina Gemignani and Quentin Wodon

Chapter 7: "An Unexamined Oxymoron: Trust but Verify," David George

Chapter 8: "On the Question of Court Activism and Economic Interests in 19th Century Married Women’s Property Law," Daniel MacDonald

Chapter 9: "Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States," Wayne Edwards

Chapter 10: "Punitive (and) Pain-and-Suffering Damages in Brazil," Osny da Silva Filho

My personal debt to Gary Becker (RIP)

Mark D. White

BeckerI was very sad to hear of Professor Gary Becker's passing. Although I never met him, and heard him speak only once, he had a tremendous impact on my life and career.

As an undergraduate economics major in college, I was focusing on monetary economics and anticipating a career with the Federal Reserve -- I wasn't even thinking of graduate school at that point. And like many an economics geek, I would confuse amaze my friends by applying reasoning based on marginal benefit and cost to everything in their lives, advising them (for instance) to ignore the sunk costs of "everything they'd put into a relationship" and focus on whether they were likely to derive positive net benefit from it going forward.

Oh how they mocked me.

But then two things happened. One was the publication of Richard Posner's book Sex and Reason, which applied basic economic reasoning to a variety of sexual topics. The other was Gary Becker's being awarded the Nobel Prize and my subsequent introduction to his work on crime, discrimination, and the family.

Validation at last! Here were two brilliant scholars, at the top of their fields, applying economic reasoning to topics other than the traditional subject matter of undergraduate economics: interest rates, GDP, and widgets. I loved the internal logic of economics since my sixth-grade teacher Mr. Dalton drew a supply-and-demand diagram on the chalkboard, but I was bored by the topics to which it was normally applied in my college classes. And here were Becker and Posner, doing interesting things with economics -- dare I say, sexy things -- and being heralded for it!

Furthermore, they showed me that I could have an academic career studying these things using economics. So I forgot about Alan Greenspan's job and instead applied to graduate schools (which I would have had to do anyway, but I hadn't thought that far ahead yet). My eventual graduate program didn't focus on "Becker topics," so instead I took the full range of microeconomics courses to get the basic modeling techniques under my fingers. And while I wasn't working on marriage or crime as I progressed toward my PhD, I did always have them in the back of my mind -- and I would include these topics in the introductory economics courses I taught in graduate school and beyond.

By the time I addressed topics like marriage and the family in writing, it was as part of a critique of the ethical foundations of mainstream economics. The same topics that fascinated me and drew me into academic economics as an undergraduate later frustrated me because of the difficulty mainstream economics had dealing with their inherent normativity. People don't help their family members and obey the law simply because the expected payoff exceeds the expected cost -- there's often more to it than that, ethical factors that are not easily reducible to raw utility. Economics has a valuable perspective to offer on these issues, although it is neither complete nor dispositive.

But, I repeat, it is valuable. And for that value, anyone who studied topics such as crime, discrimination, and the family -- or economics in general -- owes Professor Becker a tremendous debt of gratitude. My personal debts go much deeper, of course: I thank him for showing me a new avenue for my curiosity and, indirectly, for inspiring my shift to philosophy to supplement the economic approach he helped to teach me. Rest in peace, sir.

Zywicki and Smith examine the effect of behavioral law-and-economics on consumer financial protection

Mark D. White

Courtesy of the Mercatus Center at George Mason University, Todd Zywicki and Adam C. Smith have a new paper titled "Behavior, Paternalism, and Policy: Evaluating Consumer Finance Protection," in which they critique the impact of behavioral law-and-economics on the creation and operation of the Consumer Financial Protection Bureau:

This paper examines the relationship between behavioral law and economics (BLE) as a policy
prescription platform and its influence on the regulations emerging from the Consumer Financial Protection Bureau (CFPB). We show how these regulations are inconsistent with the intent and purpose of improving consumer choices. We further demonstrate that the selective modeling of behavioral bias in the BLE framework causes an overestimation of the ability of regulators, who in actuality use inefficient, heavy-handed rules based on little if any real empirical findings of “consumer irrationality.” Accordingly, the broader lesson on the misapplication of behavioral economics goes beyond the ill-considered policies emerging from the CFPB.

Near the end of the introduction (on p. 7), they detail their issues with this approach to consumer protection:

1. Political realities belie the attempts of behavioral theorists to construct policy corrections.
2. Actual political decision-making is susceptible to a number of distorting influences, most importantly bureaucratic overreach, behavioral bias on the part of the policymaker, and lack of appropriate information regarding consumer choices.
3. Bureaucrats do not hold the same preferences about political outcomes as behavioral theorists do. They are affected by self-interest like anyone else, which can cause deviations from prescribed policy measures.
4. Regulations based on behavioral findings tend to lean toward heavier forms of intervention that eliminate viable, alternative forms of exchange, thus impeding innovation and creativity in the marketplace. This in turn limits the overall amount of market activity (in this case consumer credit).
5. Policymakers are unlikely to incorporate evidence-based analysis into their decisionmaking in a manner consistent with the scientific method. Instead, policymakers are susceptible to “confirmation bias” in evaluating evidence.

I emphasize #2 and #5 and the CFPB itself in The Manipulation of Choice—in particular the last point in #2 about information—but Zywicki and Smith delve much more deeply and broadly into problems with the CFPB itself, contributing a much needed public choice perspective to the issue and concluding with recommendations to improve the operation of the CFPB. This is an essential read for anyone interested in behavioral law-and-economics or "nudges," regulation, or paternalism in general, as well as the CFPB in particular.